At Supreme Court, NY leads attack on census citizenship question

1of3FILE - In this June 22, 2018, file photo, Commerce Secretary Wilbur Ross, testifies on Capitol Hill in Washington. Democratic lawmakers want Ross to clarify where a citizenship question on the 2020 census originated after newly released documents show he was seeking such a question early in Donald Trump?’s presidency. (AP Photo/Manuel Balce Ceneta, File)Manuel Balce Ceneta2of3Acting- AG Barbara Underwood is interviewed by the State Legislature's interview committee for an appointment as state attorney general Tuesday May 15, 2018 in Albany, NY. (John Carl D'Annibale/Times Union)John Carl D'Annibale3of3People make their along State Street on Wednesday, March 21, 2018, in Albany, N.Y. (Paul Buckowski/Times Union)PAUL BUCKOWSKI/Albany Times Union

WASHINGTON — New York state’s top lawyers were at the center of the U.S. Supreme Court's consideration Tuesday of the Trump administration's decision to add a citizenship question to the 2020 Census — a move seen by Democrats as an effort to weaken the party’s base in states with large immigrant populations.

During the nearly 90-minute argument, the court’s conservative majority appeared willing to accept the rationale of Secretary of Commerce Wilbur Ross that the addition of the citizenship question would help the Justice Department in its enforcement of the 1965 Voting Rights Act.

But the court’s four-member liberal wing peppered the Solicitor General Noel Francisco with questions on what had truly motivated the administration to add the question.

“This is a solution in search of a problem,” Sotomayor said of Ross' decision to add the question.

New York Solicitor General Barbara Underwood — who served seven months last year as New York’s attorney general after the resignation of Eric Schneiderman — argued New York’s case, which was joined by 17 other states and 14 cities.

Underwood argued that Ross violated federal law by, among other things, dismissing the impact of the citizenship question on jurisdictions with significant immigrant and Hispanic populations.

“The Secretary decided to add this question about citizenship to the 2020 census although the record before him contained uncontradicted and strong evidence that it will cause a decline in the response rate of non-citizens and Hispanics, to the detriment of the states and localities where they live,” Underwood told the justices.

Dale Ho, head of the American Civil Liberties Union’s voting-rights project in New York City, said that six states including New York would suffer enough undercounting to lose entire districts in the U.S. House of Representatives.

He referred to previous government estimates that a citizenship question would lead to an undercount of as many as 6.5 million people — because immigrants, legal or not, would be fearful of admitting on a government form that they are not U.S. citizens.

“It would be as if our 18th-largest state just went poof,” Ho said outside the court after the argument.

Although Ross and other officials have said the answer to the citizenship question is neutral, Ho said the administration could produce data that includes pinpointing concentrations of non-citizens.

“You don’t have to be a conspiracy theorist to be concerned that if that data is out there, it could pose a risk to you,” he said.

Underwood and Ho cited the Constitution’s “enumeration” clause as the basis of their lawsuit against Ross, who ordered the addition of the citizenship question last year. Article I, Section 2 of the Constitution sets the “actual enumeration” of people as the basis for apportioning members of the House of Representatives. It makes no reference to “citizen.”

Over the course of U.S. history, it also became the basis for distributing federal funds.

Douglas Letter, the general counsel for the Democratic-controlled House, emphasized the constitutional origins of the census and its importance to the legislative body in his remarks to the court.

"Anything that undermines the accuracy of the 'actual enumeration' is immediately a problem," he said.

Francisco argued that Ross did not violate any law in adding the question. He also said the fears of an undercount or the data being used by other government agencies for illegal purposes were not legitimate injuries to establish standing in court for legal challenges to the question.

The citizenship question had been asked up to 1950. But in more recent decades, it has been asked only on the Census "long form," sent to a small percentage of households.

In January, a federal judge in Manhattan ruled that the citizenship question violated federal law and prohibited its use. The Commerce Department then asked the Supreme Court to intervene in order to settle the matter by this summer so that the Census Bureau could prepare for the 2020 count.

Sotomayor, whose questioning of Francisco opened and closed the hearing, said if a citizenship question is added, “There’s no doubt that people will respond less.”

The Census Bureau told the White House in documents publicly released in February that as many as 630,000 households may not complete the 2020 census because of the citizenship question.

Francisco argued that Ross’ choice to reinstate the question fell within the authority of his role as the department secretary who oversees the census. On the question of whether Ross violated the law in altering the census without a legitimate reason to do so, Justice Elena Kagan said, “I searched the record and I didn’t see any reason.”

Justice Brett Kavanaugh then asked Francisco to clarify the stated reason that including the citizenship question would improve the Justice Department’s enforcement of the Voting Rights Act.

Francisco said that the citizenship question would enable the Justice Department to complete a database on the Citizen Voting Age Population. But Sotomayor asked why the citizenship data could not be gathered from other administrative records.

After the court argument, New York lawmakers and officials said the question of undercounting is not entirely about apportioning House members.

“If you're not counted, you're not represented,” said Rep. Carolyn Maloney, D-N.Y., outside the courthouse. She worried that some communities in New York would not receive the “proper support” from the federal government due to undercounts.

"Fairness means that assistance reaches those who need it the most," said New York Attorney General Letitia James, who appeared at the news conference after the argument. (The state's legal challenge to the question was brought in April 2018; James took office in January.) "It means that communities have equal representation in government. It means no group or neighborhood is marginalized."

James said the issue of census undercounting is as important in rural areas in upstate New York as it is in the five boroughs and their suburbs.

“People who live upstate rely a lot on undocumented individuals,” she said. “They are critically important to the economy and the bottom line.”